On December 23, 2025, a District Judge in the Southern District of West Virginia ruled that the state is temporarily prohibited from enforcing its synthetic food dye ban while the law is being challenged in court. This law, enacted as HB 2354 and codified at W. Va. Code § 16-7-2, 4; 18-5D-3A, is being challenged by the International Association of Color Manufacturers (IACM). While the litigation remains ongoing, this article will discuss the court’s most recent ruling.
Background on HB 2354
In 2025, West Virginia enacted HB 2354, a bill that addressed synthetic color dyes. Specifically, this bill had two functions. First, it banned the use of certain synthetic color dyes statewide and second, it prohibited foods with these ingredients from being included in a “meal served in a school nutrition program.” Each part had a different implementation date. The school prohibition went into effect on August 1, 2025, and the statewide ban is scheduled to go into effect on January 1, 2028.
The statewide ban portion said that foods with ingredients that are “poisonous or injurious” to health are adulterated. W. Va. Code § 16-7-2(b)(7). Adulterated foods may not be sold, and anyone who does so may be charged with a criminal misdemeanor. W. Va. Code § 16-7-4. This language is followed by a list of ingredients, including “butylated hydroxyanisole, propylparaben, FD&C Blue No.1, FD&C Blue No.2, FD&C Green No.3, FD&C Red No. 3, FD&C Red No. 40, FD&C Yellow No. 5, and FD&C Yellow No. 6.” Once the law is effective, the use of any of these ingredients would prevent the food from being sold. The law does include an exception, however, for businesses that sell less than $5,000 worth of food a month.
The second part of the law, codified at W. Va. Code § 18-5D-3A, bans the following color dyes from being served in school nutrition program meals – Red Dye No. 3, Red Dye No. 40, Yellow Dye No. 5, Yellow Dye No. 6, Blue Dye No. 1, Blue Dye No. 2, and Green Dye No. 3. This provision did not prohibit the sale of food items with these ingredients as part of a school fundraiser off school premises or on school premises at least one-half hour after the end of the school day.
Background of color additives
The Food and Drug Administration (FDA) defines color additives as “a dye, pigment or other substance, which is capable of imparting color when added or applied to a food, drug, or cosmetic to the human body.” They are distinguished from other food ingredients by the Federal Food, Drug and Cosmetic Act (FDCA), and have their own separate and differing regulatory scheme. For example, all color additives must be approved by FDA through a petition process before they can be used in food. In contrast, some food ingredients are permitted for use without FDA approval through the “Generally Recognized As Safe” (GRAS) pathway. To read more about the difference in color additives, food additives, and GRAS ingredients, click here to read NALC article “Update on Proposed Food Additive Bans.”
Color additives are classified as either naturally occurring or synthetic. A synthetic color dye is manmade and must be certified by FDA as “safe” before it is included in food. While a naturally occurring color additive must also be approved by the FDA before its use in food, it is not required to undergo a safety certification process. There are nine synthetic color dyes approved for use in foods by the FDA – three of which the agency is in the process of revoking. (NALC explainer here) Of the nine approved dyes, seven of them are specifically prohibited by West Virginia’s law. The other two enumerated ingredients listed in West Virginia’s law are not classified as color additives by the FDA. Butylated hydroxyanisole is classified as a food additive, and propylparaben is an ingredient permitted under the “Generally Recognized As Safe” pathway.
The Case
Two months after the school meal provision of HB 2354 went into effect, the trade association International Association of Color Manufacturers (IACM) challenged its constitutionality. IACM has been the singular association “representing the interests of the color additives industry, both natural and synthetics,” since 1972. Its members include manufacturers, producers, and users in the color industry.
In its complaint, IACM is claiming that HB 2354 is unconstitutional in three ways. First, IACM claims the law is a violation of the Equal Protection Clause because it “targeted color additives without any rational basis for finding that they are . . . unsafe in any way.” Second, they claim the law is a prohibited bill of attainder that “singl[es] out for prohibition and criminal sanction the named color additives” without a proper judicial proceeding. Last, the complaint claims that the law is unconstitutionally vague in violation of the Due Process Clause.
This litigation is ongoing, and the merits of IACM’s challenge remain undecided. However, this article will further discuss a recent decision in the case – the Judge’s ruling on IACM’s request for a preliminary injunction.
A preliminary injunction is a motion that is issued before a trial’s final judgment. It orders a party to the case to stop or start doing a specific action. The goal of a preliminary injunction is to preserve the status quo before a final judgement. For a preliminary injunction to be issued, the moving party must satisfy four factors: 1) that they are likely to succeed on the merits, 2) that they will suffer irreparable harm unless the injunction is issued, 3) that the balance of equities tips in their favor, and 4) that an injunction is in the public interest.
Success on the Merits
The Court first considered IACM’s three claims to see if they would be likely to succeed on the merits. For the equal protection claim, the Court determined that IACM was not likely to succeed because “there was at least a debatable question regarding the safety of the named color additives” brought before the West Virginia legislature. An equal protection claim arises from the Fourteenth Amendment to the U.S. Constitution and provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of law.” Specifically, this clause requires equal treatment for individuals in similar situations. However, unless a law burdens a fundamental right or a suspect class, it will be upheld if “it bears a rational relation to some legitimate end.” The Court determined that legislative discussion regarding potential safety risks of color additives served as a rational basis for HB 2354’s enactment, and refused to issue a preliminary injunction on this basis.
Next, the Court determined that IACM was also unlikely to succeed on their bill of attainder claim. An unconstitutional bill of attainder occurs when a legislative act singles out an individual or narrow group of people for punishment without a judicial proceeding. There are three elements that must be met for a legislative act to be considered a bill of attainder: 1) the law must impose punishment, 2) it must target specific individuals or identifiable groups, and 3) it must do so in a manner that bypasses judicial protections. Here, the Court found that HB 2354 is not an unconstitutional bill of attainder. The Court determined that the law applies to anyone who adulterates food, and not just the specific manufacturers or users of the listed color additives. Further, the Court found the bill does not impose punishment without judicial protection because it includes language that clarifies a punishment will not be levied until after conviction. As a result, the court refused to issue a preliminary injunction on this claim.
Last, the Court looks to IACM’s claim of unconstitutional vagueness and found that IACM might be successful. The doctrine of void for vagueness applies when a statute fails to “give a person of ordinary intelligence adequate notice of what conduct is prohibited” or does not “include sufficient standards to prevent arbitrary and discriminatory enforcement.” Manning v. Caldwell for City of Roanoke, 930 F.3d 264, 272 (4th Cir. 2019). In other words, a statute is too vague if it does not clearly state what actions it is prohibiting. This is important because a statute that is too vague would not give proper notice to the public and might lead to unfair enforcement.
Here, the Court finds that the plaintiffs are likely to succeed on the merits of the claim that HB 2354 is unconstitutionally vague. The Court ruled as such because the legislature failed to define “poisonous and injurious” and did not prohibit other color additives not included in the enumerated list from being classified as such. Specifically, the Court took issue with the following language in HB 2354, “poisonous or injurious to the health, including butylated hydroxyanisole, propylparaben, FD&C Blue No. 1 . . .” (emphasis added). The Court found that a failure to define “poisonous or injurious” paired with the insertion of a “nonexclusive” enumerated list of FDA-approved color additives could “leave the door open for arbitrary enforcement.” Stated another way, the Court believes HB 2354 is vague because it does not make clear what color additives are “poisonous and injurious.” Further, since there is no standard that clarifies which color additives are prohibited, additional color additives could be considered “poisonous and injurious” without the public’s knowledge.
Though this ruling analyzed the claims of IACM and made assertions of their likely outcomes, it is not a ruling on the merits. However, a ruling like this is often an indicator of the judge’s perception of the case’s claims.
Irreparable Harm
Next, the Court looked at a preliminary injunction’s second factor, irreparable harm. For an injunction to succeed, the person seeking it must prove that they are likely to suffer irreparable harm the law is enforced. A harm is considered irreparable if it cannot be entirely resolved by the trial’s final judgement, and economic harms will only be deemed irreparable if they cannot be recovered. Here, the Court finds that IACM members are likely to suffer irreparable economic harm if this injunction fails. The Court specifies that the uncertainty surrounding HB 2354’s unconstitutionality is sufficient to establish irreparable harm. The Court explained that IACM’s members would likely suffer harm if they spend significant resources changing their processes, updating equipment, or developing new products for a law that is likely unconstitutional. As a result, the court found that the second element of the analysis was met.
Balance of Equities and Public Interest
Last, the court considered the third and fourth factors of a preliminary injunction – the balance of equities and public interest. In a case where the defendant is the government, these two factors merge and the Court analyzes them together. The goal of a preliminary injunction is to “preserve the status quo,” and this factor will consider if the hardships imposed on the moving party outweigh the public’s interest in having the law enforced. Here, the Court determined that it would be unfair to require IACM’s members to comply with HB 2354 given that it is likely unconstitutional. Further, because the statewide ban portion of HB 2354 is not yet in effect, the Court believes that granting this injunction will not result in any additional harm to the public.
Impacts of the injunction
Because all elements were met, the Court granted IACM the preliminary injunction. As a result, West Virginia’s Department of Health is not able to enforce the statewide ban outlined in HB 2354.
However, the Court notes in a footnote of its decision that the injunction does not apply to the school meal portion of the law. They make clear that this distinction is because IACM only “demonstrated that Section 16-7-2(b)(7),” the statewide ban provision, “is likely unconstitutionally vague.” Thus, the West Virginia Board of Education will be permitted to continue enforcing the school meal portion of the law.
Conclusion
This case remains ongoing, and at this time, no trial date has been set. As more state legislatures consider passing similar legislation to West Virginia’s, it is likely that this will not be the only litigation pertaining to the banning of color additives. To stay up to date on this case and the actions of state legislatures nationwide, click here to subscribe to NALC’s biweekly newsletter, “The Feed.”